In contrast, here it is uncontested
that defendant had no notice that the trial court might enter a conviction for
criminally negligent homicide.� Rather, defendant had every reason to believe
that it would not.� Indeed, defendant proceeded to trial, after the prosecutor
had refused to go to a jury trial on a charge of criminally negligent
homicide, on the reasonable belief that the prosecutor had eschewed pursuit of
that crime by re-indicting him for the greater offense of second-degree
manslaughter.� The record reflects defendant's surprise and alarm at being
convicted of the lesser offense of criminally negligent homicide; both
defendant's opening statement and closing argument centered on the recklessness
element of manslaughter, and the court denied defendant's motion for a judgment
of acquittal because, at that stage of the proceeding, the court found the
evidence sufficient to support the finding of a reckless mens rea.� At
no point in the record did defendant or the prosecutor argue, or the court
suggest, that the lesser-included offense, which involved a different mental
state, was or should have been under consideration.� What is more, as
discussed, the prosecutor specifically informed defendant that "we are not
going to let you have a jury trial on [criminally negligent homicide]."

That unique confluence of factors in
this case, each reinforcing the conclusion that defendant lacked actual notice
that the lesser-included offense was under consideration by the trial court,
persuades us that the overriding principles of due process must supplant the usually
supportable legal fiction of ORS 136.465.� Our disposition of this case makes
it unnecessary to consider defendant's contention that the evidence was
insufficient to support a conviction for second-degree manslaughter.

Reversed and remanded.

1.Our opinion in Cook
does not describe the trial or specify whether the defendant had notice of the
trial court's consideration of the lesser-included offense.� The defendant in Cook
did not argue that he lacked notice, only that the trial court lacked
jurisdiction.